Averill v. Taylor & Vernon
New York Supreme Court
This was a motion to strike out certain parts of the defendants’ answer for irrelevancy, impertinence and immateriality, and was made on the complaint and answer, and on a short affidavit stating the time of serving the same. The suit was brought for an injunction to restrain the defendants from proceeding with a statute foreclosure of a certain bond and mortgage, conditioned for the payment of a sum of money ; and to have the bond and mortgage delivered up and cancelled.
Read the full summary
This was a motion to strike out certain parts of the defendants’ answer for irrelevancy, impertinence and immateriality, and was made on the complaint and answer, and on a short affidavit stating the time of serving the same. The suit was brought for an injunction to restrain the defendants from proceeding with a statute foreclosure of a certain bond and mortgage, conditioned for the payment of a sum of money ; and to have the bond and mortgage delivered up and cancelled. The complaint stated, in substance, that Jesse Averill, the plaintiff, executed the bond and mortgage to Marvin Averill,…
1Opinion of the Court
Cady, Justice.
The insolvency of the testator at the time of his death may be a material question in the cause, if the plaintiff shall rely at all on the bequest in the will, in his favor; for debts are to be paid before legacies (2 R. S. 90, § 44 and 45; Lupton, vs. Lupton, 2 John. Ch. Ref. 614). That part of the answer, therefore, ought not to be struck out, if it can in any event become material.
■ The next part of the answer relates to the fact that the plaintiff and his wife have conveyed a part of the premises to A. E. Smith, and the necessity of his being made a party. If it were certain…
2Cited by3 opinions
- Clark v. Jeffersonville RailroadIndiana Supreme Court · 1873
- Peterson v. Chemical BankThe Superior Court of New York City · 1863
- Roediger v. SimmonsNew York Court of Common Pleas · 1872